The following document was filed in the Connecticut Supreme Court by Attorney Robert E. Wright (Juris No. 101778) of Wethersfield, Connecticut on behalf of C.R. Klewin, Inc. Records of the Connecticut Appellate Court indicate that within the last ten years Robert E. Wright has filed other documents on behalf of C.R. Klewin, Inc., Klewin Building Company, Inc., C.R. Klewin Northeast, LLC, Connecticut Resources Recovery Authority, Southeastern Connecticut Resources Recovery Authority, and Williams Associates II, LLC.
STATE OF CONNECTICUT
SUPREME COURT
SC 18266
THE TRAVELERS INDEMNITY COMPANY,
TRAVELERS CASUALTY AND SURETY
COMPANY, AND TRAVELERS PROPERTY
CASUALTY COMPANY OF AMERICA,
PLAINTIFF
v.
C. R. KLEWIN, INC., DEFENDANT
REPLY BRIEF OF DEFENDANT/APPELLANT, C.R. KLEWIN, INC.
ROBERT E. WRIGHT
204 MAPLE STREET
WETHERSFIELD, CT 06109
ATTORNEY FOR C.R. KLEWIN, INC.
860 655 2799
860 885 3250 (fax)
bwright@damatobuilders.com
Its Attorney
Table of Contents
Statement of Issue …………………………………………… 4
Table of Authorities…………………………………………… 5
Reply Argument………………………………………..……... 8
I. The Appellate Court improperly dismissed the
defendant’s appeal…………………………………......... 8
A. Standard of Review……………………………………. 8
B. The Appellate Court improperly dismissed
Klewin Inc.’s appeal…………………………………… 8
1. Travelers and Klewin, Inc. agree that, absent
a recognized exception, only a final judgment
can be appealed………………………………………. 8
2. Klewin appealed from a final judgment……………... 9
i. The Appellate Court’s dismissal was
inconsistent with Connecticut law……………… 12
ii. Where a judgment is not tentative, provisional,
or contingent and represents the completion of
all steps in the adjudication of the claim by the
court, the judgment is final, irrespective of
whether the trial court overlooked a claim
of one of the parties……………………………..…16
3. The parties are responsible for obtaining rulings on overlooked claims. If they fail to
do so, the claims are waived. Travelers’
concept of finality is impractical, and would
waste judicial resources…………………..……... 19
Conclusion and Statement of Relief Requested………….. 21
Statement of Issue
Did the Appellate Court properly dismiss the defendant’s appeal for lack of a final judgment?
Table of Authorities
Statutes Page
General Statutes § 52-212a…………………………………………… 17
General Statutes § 52-263……………………………………………… 18
United States Supreme Court Decisions
Osterneck v. Ernst & Whinney, 489 U.S. 169 (1989)………………… 11
Connecticut Supreme Court Decisions
Bingham v. Department of Public Works, ……………………….14,15, 16
286 Conn. 698 (2008)
Dickinson v. Mullaney, 284 Conn. 673 (2007) ………………………14,15
C.R. Klewin Northeast, LLC v. Bridgeport,
282 Conn. 54 (2007)……………………………………………………..11,13
Gianetti v. Meszoros, 268 Conn. 424 (2004)……………………….... 11
Schoonmaker v. Lawrence Brunoli, Inc.,
265 Conn. 210 (2003) ………………………………………………12, 14, 16
Balf Co. v. Spera Construction Co.,
222 Conn. 211 (1992) )………………………………………………....10,14
Stroiney v. Cresent Lake Tax District,
197 Conn. 82 (1985)……………………………………………..…….. 11
Connecticut Appellate Court Decisions
Manifold v. Regaglia, 94 Conn.App. 103 (2006)……………………... 13
Rapin v. Nettleton, 50 Conn.App. 640 (1998)………………………… 13
IBM Credit Corp. v. Mark Facey & Co.,
44 Conn.App. 490 (1997)……………………………………………….. 11
Connecticut Rules of Court
Practice Book § 10 - 28………………………………………………… 19
Practice Book § 17 - 4…………………………………………………… 17
Practice Book § 60 - 1…..……………………………………………… 18
Practice Book § 61 - 9..…………………………………………………. 18
Practice Book § 61-10…………………………………………………… 21
Practice Book § 63 - 1..…………………………………………………. 17
Practice Book § 66 - 5..…………………………………………………. 17
Practice Book § 66 - 7..…………………………………………………. 18
Decisions of Other Courts
Miller v. First Int’l Fid. & Trust Bldg., Ltd.,
113 Ohio St. 3d 474 (2007)…………………………………………….. 11
McHaffie By & Through Wieland v. Bunch,
951 S.W.2d 340 (Mo. Ct. App. 1997)…………………………………. 11
Zamarripa v. Sifuentes, 929 S.W.2d 655 (Tex. App. 1996)………… 11
Treatises
Restatement Second Judgments, Chapter 3, Section 13(b)……9,16,17
NATURE OF PROCEEDING AND STATEMENT OF FACTS
In this Reply Brief, the defendant/appellant (herein referred to as “Klewin, Inc.”), relies on the same statement of facts and nature of the proceedings as stated in Klewin, Inc.’s Brief. This Reply Brief addresses, in order, each section of the Brief filed by the plaintiffs/appellees (collectively referred to as “Travelers”).
REPLY ARGUMENT
I. The Appellate Court improperly dismissed the defendant’s appeal.
A. Standard of Review
Travelers and Klewin, Inc. agree that the Supreme Court’s review is plenary.
B. The Appellate Court improperly dismissed Klewin, Inc.’s appeal.
1. Travelers and Klewin, Inc. agree that, absent a recognized exception, only a final judgment can be appealed.
The parties disagree, however, about whether and under what circumstances a judgment can be considered “final.” In this case, the trial court failed to rule on Travelers’ claim for prejudgment interest. Klewin, Inc., asserts that because the court issued its judgment after a trial on the merits, because the judgment did not reserve judgment on prejudgment interest or on any other claim, and because the judgment awarded a fixed, definite amount of damages, the judgment was final for purposes of appeal. Klewin, Inc., agrees with a passage in the Restatement (Second) Judgments that a “judgment is considered final ‘if it is not tentative, provisional, or contingent and represents the completion of all steps in the adjudication of the claim by the court….”’ Klewin, Inc.’s Brief at 6 (quoting the Restatement Second Judgments). In other words, if a trial on the merits has concluded and the court has issued a judgment that appears on its face to be final, the judgment is final. Such a judgment may be appealed – even if the court overlooked a claim made by one of the parties.
Travelers disagrees, and asserts that “the finality of [a] judgment depends on whether the ruling actually disposed entirely of the plaintiff’s claims for relief.” Travelers’ Brief at 12. Travelers further asserts that, once an appeal is filed, Connecticut appellate courts must review the trial court’s record searching for unresolved claims made by the plaintiff. According to Travelers, if such a claim is discovered, the appeal must be dismissed.
2. Klewin appealed from a final judgment
Klewin, Inc., asserts that the trial court’s judgment in the instant case was final because the trial on the merits had concluded and the trial court ruled on Travelers’ lone cause of action by awarding a fixed, definite amount of damages. Once that judgment was issued, Klewin, Inc., had a right to appeal, even though the trial court had overlooked Travelers’ claim for prejudgment interest. Indeed, if Klewin, Inc., had not filed its appeal within twenty days, and if Travelers had chosen not to seek prejudgment interest by filing its motion to open, Klewin, Inc.’s right to appeal would have been lost.
Travelers disagrees. Travelers asserts the trial court’s judgment was interlocutory because “it failed to resolve an element of the plaintiff’s plea to be made whole [Travelers’ claim for prejudgment interest].” Travelers’ Brief at 3. For this proposition, Travelers cites Balf Co. v. Spera Construction Co., 222 Conn. 211 (1992), and Travelers correctly notes that the appeal in Balf was dismissed because the case was appealed before the trial court had determined whether to award prejudgment interest.
Balf, however, differs significantly from the instant case. In Balf, the trial court’s judgment specifically reserved ruling on prejudgment interest. Therefore, the judgment, on its face, was not final. This position is entirely consistent with the Restatement which, after describing what constitutes a final judgment, states that “[f]inality will be lacking if an issue or fact essential to the adjudication of the claim has been reserved for future determination, or if the court has decided that the plaintiff should have relief against the defendant of the claim but that the amount of the damages, or the form or scope of other relief, remains to be determined.” Restatement (Second) Judgments, Chapter 3, Section 13(b). The trial court’s judgment in Balf expressly contemplated further adjudication on the merits, and therefore was not final.
The same distinction applies to two of the other Connecticut cases cited by Travelers: Stroiney v. Cresent Lake Tax District,197 Conn. 82 (1985) (in which the trial court decided that the plaintiff should have relief, but not the amount of damages); Gianetti v. Meszoros, 268 Conn. 424 (2004) (in which the trial court granted prejudgment interest, but failed to determine the amount).
Traveler’s also cites a number of federal cases. Klewin, Inc., agrees with Osterneck v. Ernst & Whinney, 489 U.S. 169, 175-77 (1989), and the other cited federal cases, that prejudgment interest is part of a plaintiff’s damages and is designed to make the plaintiff whole. But the nature of prejudgment interest is not at issue in the instant case. The federal cases cited by Travelers do not require the dismissal of an appeal where the trial court has concluded a trial on the merits, has not reserved ruling on any claim, and has awarded a fixed amount of damages. In fact, as Travelers acknowledges in its footnote 1, the current Federal Rules of Appellate Procedure provide that if a party files an appeal before a post trial motion is decided, the appeal becomes effective after the trial court rules on the post trial motion. If this federal rule were applied to the instant case, Klewin, Inc.’s appeal would be allowed to proceed.
As to the non-Connecticut cases cited by Travelers, to the extent that they hold that judgments that reserve ruling on prejudgment interest are not final or that prejudgment interest is part of a plaintiff’s claim to be made whole, Klewin, Inc. agrees that they were correctly decided. The Court should note, however, that these cases applied appellate rules peculiar to each state.[1]
Travelers also cites IBM Credit Corp. v. Mark Facey & Co., 44 Conn.App. 490 (1997). In that case, the Appellate Court dismissed an appeal where the trial court issued its judgment, then the defendant appealed, and thereafter the plaintiff moved for an award of prejudgment interest. The case makes no mention of whether the trial court reserved ruling on prejudgment interest, but the case seems to support Travelers’ position. For the reasons stated in Klewin, Inc.’s Brief and in this Reply Brief, Klewin, inc. disagrees with this result.
i. The Appellate Court’s dismissal of the instant appeal was inconsistent with the other appeals that have been decided even though the trial court overlooked a claim made by one of the parties.
In its Brief at Section B.1, Klewin, Inc., cited Bingham v. Department of Public Works, 286 Conn. 698, 705 n. 5 (2008); Dickinson v. Mullaney, 284 Conn. 673, 680 (2007); C.R. Klewin Northeast, LLC v. Bridgeport, 282 Conn. 54, 106-07 (2007); Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 232 (2003); Manifold v. Regaglia, 94 Conn.App. 103, 120 (2006); and Rapin v. Nettleton, 50 Conn.App. 640, 651 (1998), as examples of cases in which Connecticut appellate courts decided appeals even though the trial court overlooked a claim made by one of the parties. Klewin, Inc., argued that if a judgment is non-final because it overlooks a claim made by one of the parties, then these and other similar appeals should have been dismissed, and the appellate courts’ decisions in such cases are null and void.
Travelers responded by stating that courts may overlook certain claims made by certain parties, but not others. “To render a final judgment, a trial court must adjudicate all of the plaintiff’s claims for relief due to the defendant’s alleged misconduct.” Travelers Brief at 7 (emphasis added). According to Travelers, a “final” judgment only needs to address “the plaintiff’s claims for relief;” other claims are mere “arguments” and need not be addressed. Id. Travelers position is unprecedented and implausible. If final judgments need only address “the plaintiff’s claims for relief,” then a trial court’s judgment would be final even if it reserved ruling on the defendant’s special defenses.[2] If this distinction is upheld, appeals could be taken even where the trial court had reserved ruling on dispositive claims that the action was barred by applicable statute of limitation, or that the contract on which the plaintiff sued was unlawful. Plainly, a trial courts judgment would not be final if it specifically reserved ruling on such claims.
Travelers cites Balf, supra, in support of its position, but Balf never draws a distinction between a plaintiff’s claims for relief and other claims. Again, Balf involved a judgment in which the trial court specifically reserved ruling on a claim for prejudgment interest. The Balf Court evaluated three criteria in determining whether a trial court’s ruling on a reserved claim was required before a judgment would be considered final and appealable. According to Balf, reserved claims that must be decided for a judgment to be considered final are those which (1) affect the amount of compensation due, (2) are not wholly collateral to the judgment in the main cause of action and (3) must be resolved to avoid the piecemeal appeals.[3] 222 Conn. at 214-15.
If Travelers were correct in distinguishing the overlooked claims in such cases as Dickinson v. Mullaney, supra, Bingham v. Department of Public Works, supra, and Schoonmaker v. Lawrence Brunoli, Inc., supra, from the prejudgment interest claim in Balf, then the trial courts in the these cases could have specifically reserved judgment on the overlooked issues and their judgments would nevertheless have been final. In other words, the habeus court in Dickinson could have reserved ruling on the issue of “inexcusable delay,” the trial court in Bingham could have reserved ruling on whether the plaintiff was statutorily aggrieved, and the trial court in Schoonmaker could have reserved ruling on the plaintiff’s statute of limitations claim, and the judgments in these cases would nevertheless have been final and appealable. Travelers’ argument is plainly incorrect. In each of these cases the overlooked claims (1) were central to the parties’ claims for relief, (2) were not collateral to the judgment on the main cause of action, and (3) required resolution to avoid a piecemeal appeal.
For instance, in Schoonmaker the plaintiffs’ statute of limitations claim[4] was central to their claim for relief because the amount of the judgment would have been higher if the trial court ruled in the plaintiffs’ favor on this claim. The Schoonmaker plaintiffs’ statute of limitations claim was not collateral to the judgment because the same facts at issue in proving the defendants’ claim would have been at issue in proving the reduced claim if the plaintiffs were successful in asserting their statute of limitations defense. Moreover, had the Schoonmaker appeal proceeded and had the trial court subsequently ruled in the plaintiffs’ favor on the statute of limitations claim, the appeal would have been piecemeal.
As a result, Travelers failed in its attempt to distinguish the cases cited in section B.1 of Klewin, Inc.’s Brief. Therefore, If the Appellate Court was correct in dismissing the instant appeal, then the cited cases and others should have been dismissed for lack of subject matter jurisdiction, and the appellate decisions rendered in those cases are null and void.
ii. Where a judgment is not tentative, provisional, or contingent and represents the completion of all steps in the adjudication of the claim by the court, the judgment is final, irrespective of whether the trial court overlooked a claim of one of the parties.
Travelers mocks this contention, and refers to Klewin, Inc.’s concept of finality as “cosmetic” and “existential.” According to Travelers, a judgment is “final” only if it finally resolves all claims (or at least that subset of claims Travelers describes as “the plaintiff’s claims for relief” that are “connected to the merits of the pleadings”).
Travelers challenges Klewin, Inc.’s reading of the Restatement passages quoted above in sections 1 and 2 of this Reply Brief. In particular, Travelers claims that Klewin, Inc., has misinterpreted the Restatement’s claim that a “final” judgment is issued only after the trial court has completed “all steps in the adjudication of the claim.” [5] Travelers asserts that this requirement was not met in the instant case because the trial court issued its judgment before it decided Travelers’ claim for prejudgment interest. Klewin, Inc., believes that the context of the Restatement quote makes clear that the final step in adjudication of the claim is a trial on the merits, not a decision on overlooked claims.
In the instant case, the trial on the merits was completed before the initial judgment was rendered. The Restatement does not say and does not mean that a judgment is final only if the trial court specifically addresses all the plaintiff’s claims. Otherwise, the Restatement’s comment about final judgments not being “tentative, provisional or conditional” would make no sense. If a judgment is non-final because it overlooked a claim for relief made by the plaintiff, then the language about final judgments not being tentative, provisional or conditional has no meaning or purpose. According to Travelers, a judgment can be non-final even if it is not tentative, provisional or conditional. Therefore, Travelers’ position is belied by the Restatement passage itself, which was quoted in full in Klewin, Inc.’s Brief.
Travelers’ argument does, however, very clearly state the main issue in the instant case. Travelers asserts that “[f]inality does not rest upon appearances or even upon the trial court’s awareness or beliefs regarding the completeness of the judgment.” Travelers’ Brief at 11-12. Klewin, Inc., disagrees. If the trial court’s judgment indicates that the court has taken its final action in a case, then it is time for the parties to act.
If the trial court has overlooked an issue that one of the parties wants to have decided, that party can file a motion to open pursuant to General Statutes § 52 – 212a or Practice Book § 17 – 4. If the motion to open is filed before the case is appealed, then the appeal period is extended pursuant to Practice Book §§ 63 – 1 (c)(1). After the case is appealed, the party seeking a ruling on an overlooked claim can file a motion to open or it can file a motion for articulation pursuant to Practice Book § 66 – 5. Thereafter, pursuant to Practice Book §§ 61 - 9 and 66 - 7, respectively, the parties are given an opportunity to amend the appeal to address the trial court’s ruling. This orderly process allows for the timely filing of appeals while accommodating Practice Book § 60 – 1’s disposition in favor of avoiding injustice.
Travelers’ position would accomplish the opposite result. According to Travelers anytime an overlooked claim is discovered, the appeal has to be dismissed. If this position is adopted, then Practice Book §§ 61 – 9, 66 - 5 and 66 – 7 should be amended to require that, after an appeal has been filed, if a party files a motion to open or a motion for articulation to address an overlooked claim, then the appeal should be dismissed and the parties should have no opportunity to amend.
3. The parties are responsible for obtaining rulings on overlooked claims. If they fail to do so, the claims are waived. Travelers’ concept of finality is impractical, and would waste judicial resources.
Travelers asserts that “appellate courts have the responsibility … to ensure that an appeal is taken from a final judgment.” Travelers’ Brief at 13. Travelers supports its assertion by citing General Statutes § 52-263, which limits the appellate courts’ jurisdiction to appeals from final judgments. Travelers further asserts that appellate court’s should discharge their duty by searching the trial court record for the plaintiff’s “requests for relief connected to the merits of the pleadings before the trial court.” Travelers’ Brief at 14. Presumably, Travelers limited the appellate courts’ search obligation to the pleadings because it would impose less of a burden.
Klewin, Inc., agrees that Connecticut appellate jurisdiction is generally limited to reviewing final judgments. However, as discussed above and in its Brief, Klewin, Inc., has a different definition of “final” judgment. Moreover, Klewin, Inc. disagrees with the assertions that the appellate courts, rather than the parties, are required to ferret out overlooked issues, and that such a duty could be discharged merely by reading the pleadings.
If the appellate courts are assigned the duty of ferreting out the plaintiff’s claims for relief, the courts will have to review more than just the pleadings because such claims are not always included in the pleadings. For instance, prejudgment interest, the specific claim at interest in this case, does not need to be pleaded. Practice Book § 10-28. In a case where the plaintiff requests prejudgment interest during the trial or closing argument, a review of just the pleadings might falsely lead the appellate courts to believe the claim had never been made. Similarly, in a case where the plaintiff withdraws a claim during the course of a trial, the pleadings might falsely lead the appellate courts to believe the claim was never resolved. As a result, if Travelers is correct, and appellate courts are required to ferret out overlooked claims, the appellate courts will have to scrutinize the entire trial court record searching for such claims.
However, the rule in Connecticut is that the parties, not the appellate courts, are charged with obtaining decisions on overlooked issues. Practice Book § 61 – 10 specifically assigns to the appellant the responsibility for making certain that the record for review is adequate. Moreover, Connecticut appellate courts have affirmed more than fifty times the rule that
… [i]t is the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision … to clarify the legal basis of a ruling … or to ask the trial judge to rule on an overlooked matter … [6]
This rule places the obligation to ferret out overlooked claims on the parties, who are best able to bear that burden. The parties to a case always will have better knowledge of their own claims than the appellate courts. More importantly, only the parties will know which claims they wish to pursue and which they wish to abandon.
Travelers’ position, that Connecticut’s appellate courts (1) must review the trial court record to uncover overlooked claims, and (2) must dismiss appeals where such claims are found, will impose a significant and unwarranted burden on the appellate courts, and will result in trial courts being forced to rule on issues the parties had intended to abandon. Travelers’ position is unworkable and will waste significant judicial resources.
III. Conclusion and Statement of Relief Requested
This Court should overrule the Appellate Court’s dismissal of Klewin, Inc.’s appeal. Because the trial court’s judgment was issued after a trial on the merits, did not reserve ruling on any issue, and awarded a fixed and definite amount of damages, the judgment was final and appealable. As a result, this Court should direct the Appellate Court to hear and decide Klewin, Inc.’s appeal.
Respectfully submitted,
C. R. Klewin, Inc.
Robert E. Wright
Its Attorney
Certificate of Service
The undersigned hereby certifies that the foregoing Reply Brief was sent by first class mail on March 6, 2009 to the following counsel of record:
Daniel Fitzmaurice
Shannon Leger
Day Pitney, LLC
242 Trumbull Street
Hartford, CT 06103
[1] The Court also should be aware that several of these cases ((Miller v. First Int’l Fid. & Trust Bldg., Ltd., 113 Ohio St. 3d 474 (2007); McHaffie By & Through Wieland v. Bunch, 951 S.W.2d 340 (Mo. Ct. App. 1997); Zamarripa v. Sifuentes, 929 S.W.2d 655 (Tex. App. 1996)) use the term “prejudgment interest” to refer to interest that is only available if the plaintiff made a prejudgment settlement offer. “Prejudgment interest,” as used in these cases, is similar to “offer of judgment interest” in Connecticut. As a result, these cases contradict Travelers claim that “[a]n award of interest under the offer of judgment statute … is neither compensatory nor inextricably bound to the merits of plaintiff’s cause of action.” Travelers’ Brief at 9. For this reason, these cases argue against Travelers attempt to distinguish C.R. Klewin Northeast, LLC v. City of Bridgeport, 282 Conn. 54 (2007), in section 2.i of Travelers’ Brief.
[2] Travelers seems to limit its definition of what constitutes a “claim” still further in section 3 of its Brief. In that section, Travelers asserts that a final decision need only decide “plaintiffs claims for relief connected with the pleadings.” (Emphasis added.) So, notwithstanding Travelers’ assertion that “final” decisions must finally decide the parties’ claims, Travelers limits the claims it believes need to be decided to only those made by the plaintiff and only those made in pleadings. Klewin, Inc., demonstrates that these limitations are unworkable in section 3 of this Reply Brief.
[3] Travelers itself noted these criteria on page 3 of its Brief.
[4] The plaintiff raised this claim in reply to a special defense asserted by the defendants.
[5] In its Brief at section B.3, Klewin, Inc., addressed Travelers’ claim that the Restatement quotes were discussing finality for purposes of res judicata rather than appeal.
[6] A listing of decisions affirming this rule appears in the Appendix at A-14.
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